Are my children really my children?

It is not every day that we wonder if our children are really our children, but part of the complexity of estate law is that words can take on a variety of meanings. For example, the term children do not take on the same definition in succession law as everyday use. Further, the term issue when used in everyday language normally refers to a problem. So in lay terms are your children an issue? Well, we will leave that up to you to decide. Our expertise covers whether your children are an issue in succession law.

What does “Children” and “Issue” mean?

The basic legal definitions for the two terms seem quite straightforward. The term “issue” is used to describe a person’s lineal descendants. What this means is that it includes your children but is not limited to only your children. It will also include grandchildren and great grandchildren etc. The term “children” on the other hand have a more limited meaning and only include direct offspring from the parents. So when does this become a problem?

So whats the big “issue?”

In our current society, there has been a shift away from the traditional family structures. Families may now include adopted children or children who may have been conceived using someone else’s genetic material through IVF. The difficulty then arises when the term “issue” or “my children” is used in a will. Let’s take an example of Mr X with 3 children: 1 is conceived naturally, 1 is adopted, 1 is conceived using another man’s genetic material through IVF and surrogacy. If Mr X writes a will and says his estate will be split between his children who would be classified as his “children?” Alternatively, say Mr X replaced the word “children” with the word “issue,” then say his adopted child has children. In both scenarios, the answers may not be as clear-cut as you think and as such care needs to be taken when deciding which terms to use.

Issue or children it is always important to distinguish the terms when you create your will to avoid any confusion. Any confusion will lead to cases that have to go to court and will most likely lead to more emotional stress to your loved ones.  It is therefore always important to speak to a qualified legal professional when creating a will. If you wish to draft a will or have further inquiries our team of estate lawyers are available to talk to on (02) 9687 8885.